Citation Nr: 0612912
Decision Date: 05/03/06 Archive Date: 05/15/06
DOCKET NO. 99-06 401A ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Newark, New Jersey
THE ISSUE
Entitlement to service connection for heart disease, claimed
as due to nicotine dependence.
REPRESENTATION
Appellant represented by: New Jersey Department of
Military and Veterans' Affairs
ATTORNEY FOR THE BOARD
J. H. Nilon, Associate Counsel
INTRODUCTION
The appellant had active military service from June 1943 to
April 1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1998 RO rating decision that
denied service connection for coronary artery disease,
claimed as due to nicotine dependence acquired during
military service.
The appellant filed a Notice of Disagreement (NOD) in June
1998, and the RO issued a Statement of the Case (SOC) in
October 1998. In April 1999, the appellant filed a VA Form
21-4138 (Statement in Support of Claim) that the RO accepted
as a substantive appeal in lieu of a VA Form 9 (Appeal to the
Board of Veterans' Appeals).
During the pendency of this appeal, the appellant requested
an RO hearing. However, in a July 1999 statement, the
appellant indicated that he could not appear at a hearing for
health reasons and wished to have the appeal adjudicated
based on the evidence of record.
The Board remanded to the RO for further development in
August 2000. After accomplishing the requested development,
the RO continued the denial of service connection, as
reflected in the April 2003 Supplemental SOC (SSOC), and
returned the matter to the Board.
In July 2003, the Board again remanded the case to the RO,
via the Appeals Management Center (AMC), in Washington, D.C.,
for further action. After accomplishing the requested
action, the RO continued the denial of the claim (as
reflected in the July 2005 SSOC), and returned the matter to
the Board for further appellate consideration.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the claim on appeal has been accomplished.
2. Competent medical opinion states that the appellant's
diagnosed nicotine dependence (in remission) is related to
his military service.
3. Competent medical opinion states that the appellant's
diagnosed coronary artery disease is it is more likely due to
risk factors other than smoking.
CONCLUSION OF LAW
The criteria for service connection for heart disease,
claimed as due to nicotine addiction, are not met.
38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 3.303, 3.304 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
Initially, the Board notes that, in November 2000, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000), was signed into law. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To
implement the provisions of the law, VA promulgated
regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2003). The VCAA and its implementing regulations include,
upon the submission of a substantially complete application
for benefits, an enhanced duty on the part of VA to notify a
claimant of the information and evidence needed to
substantiate a claim, as well as the duty to notify the
claimant what evidence will be obtained by whom. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the
obligation of VA with respect to its duty to assist a
claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159(c).
In this case, the Board finds that all notification and
development action needed to render a fair decision on the
claim for service connection for a heart condition, claimed
as due to nicotine addiction, has been accomplished.
Through the April 1998 rating decision, the October 1998 SOC,
and the July 2005 SSOC, the RO notified the veteran of the
legal criteria governing his claim for service connection,
the bases for the denial of his claim, and the evidence that
had been considered in connection with the claim to that
point. After each, the appellant and his representative were
afforded the opportunity to respond. Hence, the Board finds
that the appellant has received sufficient notice of the
information and evidence needed to support his claim, and he
has been afforded ample opportunity to submit such
information and evidence.
The Board points out that post-remand notice letters by the
AMC in July 2003 and January 2004 satisfied the statutory and
regulatory requirement that VA notify a claimant of what
evidence, if any, will be obtained by the claimant, and what
evidence, if any, will be retrieved by VA. See Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties
imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).
In those letters, the RO notified the appellant that VA is
required to make reasonable efforts to obtain medical
records, employment records, or records from other Federal
agencies. The letters identified the evidence already of
record and asked the appellant to identify and provide the
necessary releases for any medical providers from whom he
wished VA to obtain evidence for consideration. The January
2004 letter further provided that "we are also required to
invite you to submit any pertinent evidence in your
possession."
In the decision of Pelegrini v. Principi, 18 Vet. App. 112
(2004), the United States Court of Appeals for Veterans
Claims (Court) held that proper VCAA notice should notify the
veteran of: (1) the evidence that is needed to substantiate
the claim(s); (2) the evidence, if any, to be obtained by VA;
(3) the evidence, if any, to be provided by the claimant; and
(4) a request by VA that the claimant provide any evidence in
the claimant's possession that pertains to the claim(s). As
explained above, all four content of notice requirements have
been met in this case.
Pelegrini also held that the plain language of 38 U.S.C.A.
§ 5103(a) (West 2002), requires that notice to a claimant
pursuant to the VCAA be provided "at the time" that, or
"immediately after," the Secretary receives a complete or
substantially complete application for VA-administered
benefits. In that case, the Court determined that VA had
failed to demonstrate that a lack of such pre-adjudication
notice was not prejudicial to the claimant.
As indicated above, in the matter now before the Board,
documents meeting the VCAA's notice requirements were
provided to the appellant before and after the rating action
on appeal. However, this makes sense, inasmuch as the
rating decision on appeal was issued prior to enactment of
the VCAA. Moreover, the Board finds that the lack of full
pre-adjudication notice in this appeal has not, in any way,
prejudiced the appellant. The Board notes that the Court has
held that an error in the adjudicative process is not
prejudicial unless it "affects a substantial right so as to
injure an interest that the statutory or regulatory provision
involved was designed to protect such that the error affects
'the essential fairness of the [adjudication].'" Mayfield
v. Nicholson, 19 Vet. App. 103 (2005) (rev'd on other
grounds, Mayfield v. Nicholson, No. 05-7157 (Fed. Cir. April
5, 2006)).
The Board finds that, in this appeal, any delay in issuing
section 5103(a) notice was not prejudicial to the veteran
because it did not affect the essential fairness of the
adjudication, in that his claims were fully developed and re-
adjudicated after notice was provided. As discussed above,
the AMC sent the appellant VCAA notice letters during the
pendency of the appeal, and the appellant had ample
opportunity to respond before the claim was readjudicated in
July 2005 (as reflected in the SSOC). Neither in response to
those documents nor at any other point during the pendency of
this appeal has the appellant informed the RO of the
existence of any evidence-in addition to that noted below-
that needs to be obtained prior to adjudication by the Board.
Hence, the Board finds that any failure on VA's part in not
completely fulfilling the VCAA notice requirements prior to
the RO's initial adjudication of the claims is harmless. See
ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir.
1998); Cf. 38 C.F.R. § 20.1102 (2005).
More recently, the Board notes that, on March 3, 2006, during
the pendency of this appeal, the Court issued a decision in
the consolidated appeal of Dingess/Hartman v. Nicholson, Nos.
01-1917 and 02-1506, which held that the VCAA notice
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a service connection
claim (veteran status, existence of a disability, connection
between the veteran's service and that disability, degree of
disability, and effective date pertaining to the disability).
However, as the Board's decision herein denies the
appellant's claim for service connection for heart disease,
no disability rating or effective date is being assigned;
accordingly, there is no possibility of prejudice to the
appellant under the notice requirements of Dingess/Hartman.
The Board also notes that there is no indication whatsoever
that any additional action is needed to comply with the duty
to assist the appellant. On its own and pursuant to the
Board's prior remands, the RO has obtained the appellant's
service personnel records and his treatment records from
those private medical providers that he identified as having
pertinent records; the appellant has not identified any other
medical provider(s) that may have relevant evidence to be
obtained. The appellant has been afforded appropriate VA
medical examinations in conjunction with his claimed
disability; the reports of those examinations are of record.
, and in fact the Board notes that the claim has been
remanded twice specifically to afford the appellant
additional medical examination. Significantly, neither the
appellant nor his representative has identified, and the
record does not otherwise indicate, any existing, pertinent
evidence in addition to that identified above, that needs to
be obtained.
Under these circumstances, the Board finds that the appellant
is not prejudiced by the Board proceeding, at this juncture,
with an appellate decision on the claim for service
connection for a heart condition, claimed as due to nicotine
dependence.
II. Analysis
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by wartime
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303.
The appellant specifically claims service connection for
disability due to a nicotine addition acquired during
military service. Direct service connection for a disability
may be established if the evidence establishes that injury or
disease resulted from tobacco use in line of duty during
military service. VAOPGCPREC 2-93 (O.G.C. Prec. 2-93). This
applies to claims filed on or before June 9, 1998. Here, the
appellant filed his claim for service connection in October
1997, before VA promulgated 38 C.F.R. § 3.300 (2004) (which
precludes service connection for disabilities on the basis of
disease or injury attributable to a veteran's use of tobacco
products during military service for claims filed after June
9, 1998). Hence, the appellant's claim for service
connection based on alleged in-service nicotine addiction
remains viable on appeal.
Pertinent to claims filed prior to June 9, 1998, the Under
Secretary for Health for VA concluded that nicotine
dependence may be considered a disease for VA compensation
purposes. See USB Letter 20-97-14 (July 24, 1997). Hence,
the two principal questions that must be answered by
adjudicators in resolving a claim for benefits for tobacco-
related disability or death secondary to nicotine dependence
are: (1) whether the claimant acquired a nicotine dependence
during military service (a medical question), and (2) whether
nicotine dependence that arose during service may be
considered the proximate cause of disability or death
occurring after service. See VAOPGCPREC 19-97 (May 13,
1997); see also Parker v. Principi, 15 Vet. App. 407 (2002).
Considering the claim in light of the criteria above, the
Board finds that the claim for service connection must be
denied. In making this decision, the Board particularly
notes the following items of evidence in the record: (1) the
appellant's October 1997 claim, in which he asserted that he
did not smoke prior to service but smoked heavily during
service and developed a 30-year nicotine addiction during
that time; (2) two lay statements asserting that the
appellant did not smoke or use tobacco products prior to
service; (3) private medical records showing inpatient
treatment for coronary artery disease (CAD) in June 1990; (4)
a September 1997 letter from a private physician stating that
CAD was initially documented in 1981, coronary bypass surgery
was performed in June 1990, and that the appellant's cardiac
risk factors were history of cigarette smoking, truncal
obesity, and family history of heart disease; (5) the
appellant's self-reported smoking history (began smoking in
November 1943 and continued heavy smoking until 1973); (6) a
VA medical examination in September 2002, in which the
examiner diagnosed CAD and stated an opinion that smoking
contributed to the appellant's CAD; (7) the report of
November 2004 VA psychiatric examination reflecting a
diagnosis of nicotine dependence in remission, and opinion
that the nicotine dependence is related to military service;
and, (7) the report of a May 2005 VA cardiac examination
reflecting a diagnosis of arteriosclerotic heart disease
status post double bypass surgery, and opinion that the
appellant's coronary artery disease is more likely due to
hypercholesterolemia or other risk factors than to smoking in
service.
The first requirement under VAOPGCPREC 19-97 is a
determination as to whether nicotine dependence was acquired
during service. In this case, the November 2004 VA
psychiatric examiner diagnosed nicotine dependence in
remission, and opined that it is as likely as not that the
appellant's nicotine dependence actually started while he was
in military service. The Board considers both the diagnosis
of addiction and the opinion of etiology to be competent
medical evidence that the appellant has been addicted to
nicotine, and that the addiction began during military
service.
The second requirement under VAOPGCPREC 19-97 is a
determination as to whether nicotine dependence may be
considered the proximate cause of the claimed disability. In
this case, the May 2005 VA medical examiner diagnosed
arteriosclerotic heart disease, status post double bypass
surgery, but expressed the opinion that smoking, alone, is
not the likely cause of the appellant's coronary artery
disease. The examiner stated that the appellant in fact has
multiple risk factors, including family history of heart
disease and personal history of hypercholesterolemia. The
examiner stated that hypercholesterolemia is a major risk
factor, while smoking is a minor risk factor, so smoking is
less likely to be the cause of the appellant's coronary
artery disease.
The Board notes that the May 2005 A examiner's opinion is not
controverted by any other medical evidence of record. The
private physician's letter of September 1997 listed smoking
as one of several risk factors (the others being truncal
obesity, family history of heart disease, and recent onset of
elevated blood sugars), although without prioritizing those
risk factors by significance. Similarly, the VA examiner in
September 2002 listed smoking as one of several risk factors
(the others being heredity, history of obesity, and
hypercholesterolemia), and stated an opinion that smoking
"contributed to" the appellant's CAD but did not identify
the degree to which the various identified risk factors might
have caused the appellant's CAD. Finally, the VA examiner in
May 2005 listed smoking as one of several risk factors (the
others being family history and hypercholesterolemia) but
opined that the appellant's other risk factors were more
likely than smoking to be the cause of the claimed
disability. In short, the medical evidence is consistent in
showing that the appellant has a number of cardiac risk
factors, including smoking; however, the only medical opinion
regarding a nexus between the risk factors and his CAD weighs
against a finding of a medical nexus between that disability
and in-service smoking. Significantly, moreover, neither the
appellant nor his representative has identified or even
alluded to the existence of any contrary medical opinion,
A veteran seeking disability benefits must establish not only
the existence of a disability, but also that there is an
etiological connection between his military service and the
disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000);
Hibbard v. West, 13 Vet. App. 546, 548 (2000). The above-
referenced medical evidence clearly shows that the appellant
has been competently diagnosed with a cardiac disorder-
specifically, CAD, and that his smoking history constituted a
risk factor for that disorder. However, an etiological
connection between the claimed risk factor and the claimed
disability has not been established, and the criteria for
service connection are , accordingly, not met.
The Board does not doubt the sincerity of the appellant's
(and his supporters') assertions that he did not smoke prior
to service, that he began smoking heavily in service, and
that his cardiac disorder is due to smoking. The record
clearly shows that the appellant has a nicotine addiction
(now in remission) related to service, so the fact of his in-
service smoking is not in contention. Rather, this case
turns on the question of medical nexus between the smoking
and the development of CAD. However, as each is a layperson
without the appropriate medical training and expertise,
neither the appellant nor either of the individuals who
submitted lay statements in his behalf is competent to render
a probative opinion on a medical matter, such as whether the
appellant's CAD is due to smoking or one or more of his
other medically documented cardiac risk factors. See Bostain
v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown,
10 Vet. App. 183, 186 (1997) (a layman is generally not
capable of opining on matters requiring medical knowledge).
As indicated above, the competent evidence in this case
weighs against the appellant's assertions, and, ultimately,
his claim..
Under these circumstances, the Board concludes that the claim
for service connection for a heart condition, as due to
nicotine addition, must be denied. In reaching this
conclusion, the Board has considered the applicability of the
benefit-of-the-doubt doctrine. However, as the preponderance
of the evidence is against the claim, that doctrine is not
applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102;
Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
Service connection for heart disease, claimed as due to
nicotine dependence, is denied.
____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs